1. This Civil Miscellaneous Appeal is filed by the Plaintiff, against the Judgement and Decree dated 24.11.2006 made in AS.No.77/2005 by the learned Additional District Judge (FTC-I) Salem, reversing the Judgement and Decree dated 22.4.2004 made in OS.No.228/2003 by the learned Additional Sub Judge, Salem.

2. It is not necessary to set out the facts elaborately leading to filing of this Civil Miscellaneous Appeal. The Appellant/plaintiff filed the above said suit for declaration of his absolute title to the suit property and for delivery of possession and for mesne profits. The Trial Court decreed the suit for declaration and for recovery of possession and further relegated the determination of mesne profits to a separate proceedings. The matter was taken in appeal by the Defendants in AS.No.77/2005 before the learned Additional District Judge (FTC-I) Sale. Pending the appeal, a petition was filed in IA.No.1096/2006 by the 4th Defendant to decide as a preliminary issue as to whether the decree passed by the Trial Court is non-est. The Appellant herein filed a counter, contending that no question of preliminary issue can be decided in the appeal and the appeal has to be